GHULAM SARWAR versus UNION OF INDIA & ORS.

GHULAM SARWAR

UNION OF INDIA & ORS.

December 15, 1966

[K. SUBBA RAO, C.J., M. HIDAYATULLAH, S. M. SIKRI, R. S. BACHAWAT AND J. M. SHELAT, JJ.j

Practice-Order of High Court dismissing petition for issue qf writ of habeaa corpus-Petition fo Supreme Court under Art. 32-0rder of High Court If res judicata. ·

Constitution of /lldia, 1950, Art. 359-If Presiden. can issue more than one ord<r-Order applicable only to foreigners-If violative of Art. 14.

Foreigners Act (31 of 1946)., s. 3(2) (g)-Detention under for investi-gation into conspiracy to smuggle gold-If mala lido.

Supreme Court Rules, ·0.35, rr. 3 and 4 Scope of.

After the President of India issued Proclamation of Emergency under Art. 352( 1) of the Constitution in October 1962, he io"11ed two orders under Art. 359( 1) which were subsequently amended. By one, a• amended, the right of foreigner to move any court for the enforceneit of the rights conferred by Arts. 14, 21 and 22 of the Constitution wa• suspended during the period of emergency. By the other order, as amended, the right of any person to move any court for the enforce .. ment of the rights conferred by Arts. 14, 21 and 22 was suspended during the period of emergency, if such person was deprived of any such rights under the Defence of India Ordinance, 1962, or any rule or order thereunder.

In 1964, the petitioner, who was Pakistani national, was arrested for an offence unller the Indian Customs Act, 1962. When he WU about ti> be enlarged on bail he was detained by an order under s. 3(2)(1!) of the Foreipers Act, 1946. According to the respondent, the petitioner was detamed as investigation was in progress in respect of caae or conspiracy to smuggle gold, in which the petitioner was involved. There-after, h~ was tried and convicted for the o ince under the Customs Act and sentenced to 9 months imprisonment. Before the expiry of the term of imprisonment he moved the High Court for the issue of writ of habeas corpus, but the petition was dismissed. After serving the sentence he moved this Court, under Art.· 32, again for the issue or writ of habeas corpus raising new contentions as to the validity of s. 3(2)(g) of the Foreigners Act and the President's order under Art. 359(1), relating to foreigners. · ' .

. HELD (Per Subba Rao, C. J. Hidayatullah, Sikri and Shelat, JJ;): (1) The order of the High Court does not operate as res judicata, either because it is not .a judgment or because the principle is not applicable to fundamentally lawless order, and this Court has to decide the petiti<in on. merits. [277 DJ

In the case of High Court, when it functions as Divisional Bench it speaks for the entire court, and therefore, it cannot set aside the order made by another Divisional Bench in petition for writ of' habeatf corpus, except on fresh evidence. But when the person detained

tiles an origi11;1l petition for habeas corp1t.~ before 1his Court un,Jcr Art.

.12, tho order of the High Coun will not operate as res judicata. If the Joctrine of l'C.< iudicata is applicabl~ in such ca'i<! so would be tho Joctrinc of comtructive res judicota. and. if pcticioncr could have raised contention \vhich would m:ikc the detention Order fundamentally lav.·-less, but did not do so in the Hig)t C<iurt. it would be deemed to have been raised. and this Courl. though enjoined by the Con<titution to protect the right of person illegally detained. may become p<l\\Crl""5 ID do so [276 F-H: 277 A-CJ

Da~1-c1> '· S1<11c of U.I' .. [1%2[ I S.CR. 574, rdcrrcJ to.

(2) Article 359 empo"·crs the President to make an order for tl1e purpose mentioned therein. and as the singular includes the plural. he can make dilTcrent order-; applicable to different groups of persons. Tht!re is nothing in the Artich! 1,1:hich pr~vcntco the President from r"1-tricting the scope of a.n or<lcr to c1:iss of pc~ons. namt:f, foreig-ners. [280 A-CJ (3) There i.:; distinction hct\\·ccn the President".; or<lcr and the effect of that order. Under Art. 359( 1) the President can only make an order which i< valid. If the order doc; not violate Art. 14 ii can validly take away the right to n1ovi.: the court to enforce Arr. 14. But an order makinl:! ;1n unjllStificd discrin1ination in suspending the right to move court unJcr Art. 14 ilSl·lf. v.·ilt he void at i:s inception. There-fore, the validity of the President's order issued under Art. 359( I) could he questioned if it infringed the provisions of Art. 14 of the Constitl>-tion. [280 F·Hl

Sree J..{ol1an C!iowd/1111T \. (,'/1ief Co111111i.fsio11er, Trirurll, [1964) 3 S.C.R. 442. explained. ·

(4) There i~ ho\lr·evcr, clear nexus between the classification info foreigners and citizens, and the object sought to be achieved by the President's orders. Therefore the making of two orders, one confined to foreigners and the other applicable to all person. including foreignen, does not violate Art. 14. The two orders are mainly intended to operate in different fields and their se<>pe is different, though there is some overlapping. There \\'as greater danger from the !'.Uhversivc activiti~ of foreigners. and therefore, it was Ol."CCSSary to is!lue sptcial order. wider i3 se<>pc and taking in other rights. than that which was confined only to persons who had been deprived of certain rights under the Defence of India Ordinance. [282 A-DJ

(S) As the President's order suspending the_ right to move tbe C<lUrt to enforce the right under Art. 14 is valid, the petitioner has no right to move the court 9n~uent to the incl~ion of Art. 14 in the Prci;ident's order relating to foreigners. The fact that he complained of his deten-tion for period earlier than the amendment has no bearing on the ques-tion of maintainability of the petition. [282 H; 283 A]

(6) If the petitioner was in fact involved in conspiracy to smugsle i:old, there is no reason why the wide power conferred on the Central Government to detain him under s. 3(2) (g) of the Foreigners Act could not be invoked. Such detention for the purpose of investigation was not ma/a f,de. [283 F-G}

[The question whether this C<>urt can ascertain whether the action of the Executive in declaring the ernergency or continuing it is actuated by mala (ul-'S and is an abuse of its poi.er, left open.} [278 E]

Per Bachawat, I: (!) The order of dismis.<al by the High Court doea not operate as res judlcata and does not bar the petition under Art. 32,

asking for the issue of writ of habeas corpus on the same facts. The petitioner has the fundamental right to move this Court under Art. 32 and the petition must therefore be entertained and examined on merits. The order of the High Court is not judgment; and the previous dismissal of such petition by the High Court is only one of the matters which this Court may take in[1]0 consldcration under 0. 35, rr. 3 and 4 of the Supreme Court Ruic.;, before issuing rule nisi. The petitioner, how-ever, would not have right to move this Court under Art. 32. more than once on the same. facts. 1283 H; 284 A-CJ

(2) Assuming that !he President's order under Art. 359(1) is "l:.w" within the meaning of Art. 13 ( 2). and can he pronounced invalid on lhe ground that it abridges or lakes away the right conferred by Art. 14, the order in the present case is not di:>criminatory and is not violative 0f Ari. 14. [285 E-F]

ORIGINAi. JURISDICTION : Writ Petition No. 155 of '%6.

Writ Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights.

R. V. Pillai, for the petitioner.

N. S. Bindra and R. N. Sachthe)', for respondents Nos. I to 3.

The Judgment of SuBBA RAO, C.J., HIDAYATULLAH, SIKRI and SHELAT, JJ. was delivered by SUllBA RAO, C.J. BACHAWAT, J. delivered seperate Concurring Judgment.

Subba Rao, C.J. This p~tilion under Article 32 of the Consti-tution of India raises the question of validity of t'he detention of the petitioner under s. 3 of the Foreigners Act, 1946 (Act No. 31 of 1946) (hereinafter called the Act).

The petitioner is Pakistani national who entered India without any travel documents. On May 8, 1964, he was arrested in New Delhi by the Customs Authorities under s. 135 of the Indian Cus-t•.>1m Act, 1962. On May 9, 1964, he was ordered to be enlarged on bail. On May 18, 1965, he was.ordered to be released. When he was about to be released from jail, detention order was served on him hy the Central Government under s. 3(2)1 •) of the Act. It was said that he had to be detained, as police investigation was in progress in respect of case of conspiracy to smuggle gold of~ which he was member. On May 29, 1965, he was convicted by the Maghtrate, First-Class, Delhi, of an offence under the Cus-toms Act and sentenced to undergo rigorous imprirnnment for period of 9 months and to pay fine of Rs. 2,000/-. The appeal filed by him to the Sessions Judge against that order was dismissed. The petitioner underwent imprisonment and also paid the fine. Before his term of imprisonment expired, the petitioner filed writ of liaheas corpus in the Circuit Bench of t:1e Punjab High Court at Dellli challenging his detention. That petition was dismissed hy Khanna, J., on merits. Before the learned Judge the consti-tuti0nal validity of s. 3(2)(g) of the Act was not c<1nvassed. The Ml Sup. Cl/67 -4

learned Judge held that the section authorised the Government to make the said order of detention on its subjective satisfaction and that the Court could not question its validity in the absence of any mala jides. He negatived the contention raised before him that an order under that sub-section could not be made for the purpose of completing an investigation in conspiracy case, as no such limitation was found therein. Jn short, he dismissed the petition on merits.

The present petition was filed in this Court under Article 32 of the C:mstitution on May 12, 1966 for issue of writ of lm!>eas 'carpus against the respondents directing them to set him at liberty on the ground that the provisions of the Act •1·ere invalid.

Before we consider the various contentions raised by Mr· R. V. Pillai in support of the petition, we would at the outset deal with preliminary objection raised by Mr. N. S. Bindra, learned coumel appearing for the r "spondents. Mr. N. S. Bindra, con-tended that the order made by Khanna, J., dismissing the writ of habea.r corpus filed in the Circuit Ber.ch of the Punjab High Court operated as resj11dict11a and barred the maintainability of the present application. The decision of this Court in Daryao v. Thi· State of U. P.([1]) was relied upon in support of the said contention. There, the High Court dismissed writ petition under Art. 226 of the Constitution afler hearing the matter on merits, on 'l the ground that no fundamental right was proved or contravened and that its contravention was constitutionally justified. The peti-tioner therein did not prefer an appeal against that order to this Court; but he filed an independent petition under Art. 32 of the Constitution in this Court on the same facts and for the same reliefs. This Court held that the petition in this Court would be barred by the general principles of res judicata. That decision related to right claimed by the petitioners therein. The peti-tioners in that case sought to enforce their fundamental right to property which had been negatived by the High Court in its order made on an application presented by them under Art. 226 of the Constitution. While upholding the plea of ri•s judicata, this Court made the follo"'ing observations in the context of the said plea ris-a-vis the writ of habeas corpm :

"Jn' England, technically an order rassed on peti-tion for habeas corpus is not regarded as judgment and that places the petitions for habeas corpus in class by themselves. Therefore, we do not think that the English analogy of several habeas corpus arrlications can assist the petitioners in the present case when they seek to resist the application of res judicata to petitions filed under Art. 32. Before we part with the topic. we would, however, like to

(I) [1962] I S.C.R. 574, 590.

add that we propose to expr~ss no opinion on the question as to whether repeated aprlications for habeas corpus would be competent under 0ur C0nstituti::m. That is matter with 11hich we arc n0t concerned in the present proceedings."

decision which expressly leaves open question cannot obviously be an authority on the said question. The said question, which was so left open, now falls to be decided.

Conversely, the correctness of that decision does not call for any reconsideration in the present petition, for that is ·outside the scope of the question now raised before us. · This leads us to the consideration of the scope of writ of habeas corpus. The nature of the writ of habeas corpus has been neatly summarized in Corpus Juris Secundum, Vol. 39 at p. 424 thus :

"The writ of habeas corpus is writ directed to the person detaining another, commanding him to produce the body of the prisoner at designated time and place, with the day and cause. of his caption and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf".

Blackstone in his Commentaries said of this writ thus :

"It is writ antecedent to statute, and throwing its root deep into the genius of our common law .... It is perhaps the most important writ known to the consti-tutional law of England, affording as it does swift and imperative remedy in all cases of illegal restraint or con-finement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I".

This writ has been des~ribed by John Marshall, C.J., as "a great constitutional privilege". An eminent judge observed "there is no higher duty than to maintain it unimpaired". It was described as magna carta of British liberty. Heavy penalties are imposed on judge who wrongfully refuses to entertain an application for writ of habeas corpus. The history of the writ is the history of the conflict between power and liberty. The writ provides prompt and effective remedy against illegal restraints. It is inextricably intertwined with the fundamental right of personal liberty. "Habeas Corpus" literally means "have his body". By this writ the court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal. Such is the predominant position of the writ in the Anglo-H Saxon jurisprudence.

We need not go into the history of this writ in India, for it is now incorporated in Art. 226 and Art. 32 of the Constitution.

On the question of res judicata, the English and the American Courts agreed that the principle of res judicat~ is not applicable to writ of habeas corpus, but they came to that conclusion on different grounds. It was held in England that decision in writ of habeas corpus was not judgment, and therefore it would not operate as res judicata and on that basis it was thought at one time that person detained could file successive applications before different judges of the same High Court. But subsequently the English courts held that person detained cannot file successive petitions for writ of habeas corpus before different courts of the same Division or before different Di visions of the same High Coun on the ground that the Divisional Court speaks for the entire Divi-sion and that each Division for the entire Court, and one Division cannot set aside the order of another Division of the same Court [Sec Re Hastinv ([1]) (No. 2) and Re Ha-'lings (2) (No. 3)]. The Administration of Justice Act, 1960 has placed this view on statu-tory basis, for under the said Act no second application can be brought in the s1mc court except on fresh evidence. The American Courts reached the same conclusion, but on different principle. In Edward M. Fay v. Charles Nola ([3]) the following passage appears : "As put by Mr. Justice Holmes in Frank v. Mangum (4) : If the peti-tion discloses facts that amount to loss of jurisdiction in the trial court, jurisdiction could not be restored by any decision of law. It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is im~ppl;cable in habeas proceedings." The same view was expressed in Won,; Doo v. United States(') : Harmon Metz Waley v. James A. Johnston (6) : Salinger v. Loisel ([1]) : United States v. Shaughnessv ([8]): and others.But coming to India, so far as the High Courts are concerned• the same principle accepted by the English Courts will equally apply• as the High Court functions in Divisions not in benches. When it functions as Division, it speaks for the entire court, and, there-fore, it cannot set aside the order made in writ of habms corpm earlier by another Division Bench. But this principle will not apply to different courts. The High Courts of Allahabad, Bombay, Madras, Nagpur and Patna and East Punjab have accepted this view, though the Calcutta High Court took the view that successive applications of habeas corpus could be filed. But unlike in England, in India the person detained can tile original petition for enforce-ment of his fundamental right to lihcrty before court other than the High Court, namely, this Court. The order of the High Court

(2) (1959) I All E.R. 698. 1o11 231 t:.s. 3.:8. (61 86 L. E.J. 13 2 (8) (195-\) 347 U.S. 26.i.

(I) 119181 3 All.E.R. 625. (3) 9 L. Ed. _859. (5) 68 I..E D. 999. \1) (19Z5) 265 U.S. 224.

in the said writ is not res judicata as held by the English and the American Courts either because it is not judgment or because the principle of res judicata is not applicable to fundamentally lawless order. If the doctrine of res judicata is attracted to an application for writ of habeas corpus, there is no reason why the principle of constructive res judicata cannot also govern the said application, for the rule of constructive res judicata is only part of the general principles of the law of res judicara, and if that he applied, the scope of the liberty of an individual will be considerably narrowed. The present case illustrates the position. Before the High Court the petitioner did not question the consti-tutional validity of the President's order made under Art. 359 of the Constitution. If the doctrine of constructive res judicata be applied, this Court, though it is enjoined by the Constitution to· protect the right of person illegally detained, will become powerless to do so. That would be whittling down the wide sweep of the constitutional protection.

We, therefore, hold that the order of Khanna, J., made in the petition for habeas corpus filed by the petitioner does not operate as res judicata and this Court will have to decide the petition on merits.

It was suggested that the declaration of Emergency under Art. 352 of the Constitution in the year 1962 and the continuation of the emergency for 4 long years after the cessation of the hosti-lities with China is ma/a fide and is an abuse of powers conferred on the President under Part XVIII of the Constitution. The question raised involves two points : (1) whether the declaration of emer-gency or the continuation of it is vitiated by ma/a fides or abuse of power, and (2) whether such question is justiciable in court of law. Our Constitution seeks to usher in Welfare State where there is prosperity, equality, liberty and social justice. It accepts 3 concepts for bringing about such State: (I) Federalism; (2) Demo-cracy; (3) Rule of Law. in which fundamental rights and social justice are inextricably integrated. Under Part XVIII when the emergency is declared both the Legislative and the Executive powers of the Union are extended to States. The Federal Government is practically transformed into unitary form of Government. The fundamental rights of the people under Art. 19 are abrogated and the Executive is empowered to suspend the right to move thP, court for the enforcement of any other fundamental right. The executive is also empowered to direct that all or any other provisions relating to distribution of revenue be suspended during that period. Part XVIII appears to bring down the grand edifice of our Constitution at one stroke, but little relkction discloses that the temporary suspension of the scheme of the Constitution is really intended to preserve its substance. This extra ordinary power.is unique to our

Constitution. It reflects the apprehension~ of the makers of the Constitution and their implicit confiJence in the parties that may come into power from time to time. Two expressions indk-ate the eittra ordinary situation whereunder this Part was intended to come into force. The expression 'grave emergency' in Art. 352(1) and the eitpression 'imminent danger' in Art. 352( 3) show that the existence of grave emergency or imminent danger is pre-condi-tion for the declaration of emergency. Doubtless, the question whether there is grave emergency or whether there is imminent danger as mentioned in the Article is left to the satisfaction of the Executive, for it is obviously in the best position to judge the situa-tion. But there is the correlative danger of th~ abuse of such extra ordinary power leading to totalitarianism. Indeed, the per-versions of the ideal democratic Constitution i.e. Weimar Constitu-tion of Germany, brought about the autocratic rule of Hitler and the consequent disastrous World War. What is the safeguard against such an abuse? The obvious safeguard is the good sense of the Executive, but the more effective one is public opinion. question is raised whether this Court can ascertain whether the action of the Executive in declaring the emergency or continuing it is actuated by malafides and is an abuse of its power. We do not propose. to express our opinion on this question as no material has been placed before us in that regard. It requires careful research into the circumstances obtaining in our country and the motives operating on the minds of the persons in power in continu-ing the emergency. As the material facts are· not placed before us, we shall not in this case express our opinion one way or other on this all important question which is at present agitating the public mind.

Mr. Pillai then contended that the power of the President under Art. 359(1) to suspend the right to move any court for the enforcement of fundamental rights must have real nexus to the security of India, and that the impugned order had no such nexll!. The President's order under Art. 359(1) of the Constitution reads :

"GSR-1418/30-10-62 : In exercise of the powers con-ferred by clause (I) of Article 359 of the Constitution, the President hereby declares that the right of any person who is-

(a) foreigner, or

to move any court for the enforcement of the rights con-ferred by Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (I) of Article 352 thereof on the 26•h October, 1962 is in force.

GSR 1276127-8-1965 : In exercise of the p'Owers con-

ferred by clause (I) of Article 359 of the Constitution, the Pres:dent hereby makes the following further amend-ment in Order No. GSR-1418 dated 30-10-1962 namely :

'In the said orders for the word and figure 'Article 21' the words and figures 'Article 14, Article 21' shall be substituted."

Under Article 352 an emergency could be declared only when the security of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance, or when there is an imminent danger thereof; and any order issued under Art. 359 must have some correlation to the security of India, external aggression or internal disturbance. But the impugned order, the argument proceeded, was so wide as to deprive foreigner of his fundamental rights though there was no connection between such dcprivatio[l and the security of India etc. To state it differently, the argument was that the scope of .he order under Art. 359(1) should be confined only to the sccJpe of the reasons on the basis of which an emergency could be declared. In the instant case, it was said that the said order empowered the Executive to detain the petitioner to await investigation in regard to smuggling of gold which could possibly have no relation to the security of India. We do not propose to express our opinion on this important question, as we are not satisfied on the material placed before us that the detention of the petitioner has no nexus to the emer-gency. The next contention was that the President under Art.· 359( 1) could not make orders suspending the right to move any court in respect of different categories of persons for the enforcement of the same fundamental right. To appreciate this contention, it may be mentioned that apart from the order dated 30-10-1962 relating to foreigners which we have already noticcdr the President passed an order dated 3-11-1962. It was subsequently amended on 11-11-1962. The order as amended declares that the right of any person to move any court for the enforcement of the rights conferred by Arts. 14, 21 and 22 of the Constitution shall remain suspended for the period during w,hich the Proclamation of Emer-gency issued under clause (1, of Art. 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 ( 4 of 1962) or anv rule or order made thereunder. It will be seen that the order dated 30-10-1962 was confined tO foreigners and the order dated 3-11-1962 was confined to persons who had been deprived of their rights under the Defence of India Ordinance, 1962. Re-liance was placed upon the terms of Art. 359 and contention was raised that the said Article did not countenance orders on differentgroups of persons. It is true that Article 359 does not speak of persons but only speaks of right to move any court and also to period, or part or whole of the territory. But Article 359 empowers the President to make an order for the purpose mentioned .therein and as the singular includes plural he can certain)) make different orders. But the question is : can he make an order or orders in respect of different groups of persons such as foreigners ·-and persons governed by the Defence of India Rules ~ It is true that the scope of his order shall be confined to whole or part of the territory of India and during certain periods. But there is nothing in the Article which prevents the President frcm restricting the scope of the order to class of persons, provided the operation of the order is confined to an area and to period. The impugned orders apply to the entire country and the fact that only the persons who are affected by that order could not move the Court for the en-forcement of their ri!!ht, cannot make themanythe less valid orders.

The learned counsel then contended that Art: 359( I) did not authorise the President to make an order meting out discrimi-natory treatment to foreigners, and e,,n if it did, not the order made in the instant case violated Art. 14 of the Constitution as there was no nexus between the classification of foreigners and citi-z.ens and the object for which the said ord,er was made.

Mr. Bindra, learned counsel contended that .Art. 359 con-ferred an absolute power or the President subject to the limita-tions found thereunder to make an order declaring that the right to move any court for the enforcement of one or more of the rights conferred by Part III should remain suspended, and, therefore, any order made thereunder could not be declared void on the ground that it infringed any of the fundamental rights suspended by the said order. It was said that the contrary view would amount to an argument in circle.

There is clear distinction between deprivation of fundamental rights by force of constitutional provision itself and such depri-vation by an order made by the President in exercise of power conferred on him under constitutional provision. compari-ton of the provisions of Art. 358 and Art. 359 justifies this distinc-tion. Under Article 358, by the force of that Article itself, Article 19 is put out of the way. Article 359(1) does not operate by its own force. The President has to make an order declaring that the right to move court in respect of fundamental right or rights in Part III is suspended. He can only make an order which is valid one. An order making an unjustified discrimination in suspending the right to move court under Art. 14 itself, will be void at its inception. It is still born order. It cannot be said that this involves an argument in circle. This argument ignor-es the distinction between the order and the effect of that order.

If the order dces not violate Art. 14, it can validily take away the right to move the court to enforce Art, 14. So viewed, the order of the President must satisfy the requirements of Art. 14. Mr. Bindra relied upon the decision of this Court in Sree Mohan, Chowdhury v. The Chief Commission, Union Territory of Tripura ([1]) in support of his argument that the order of the President was untrammelled by the provisions of Art. 14. The passage relied upon reads : "It was also contended that the President's order of Novem-· her 3, 1962, is subject to the condition precedent that there is valid Ordinance and the rules framed or the orders made thereunder are valid. In other words, it is contended that it is open to the peti-tioner to canvass the validity of the Ordinance. This is arguing in circle. In order that the Court may investigate the validity of particular ordinance or Act of legislature, the person moving the Court should have locus standi. If he has not the locus standi to move the Court, the Court will refuse to entertain his petition questioning the vires of the particular legislation. In view of the President's order passed under the provisions of Article 359(1) of the Constitution, the petitio1."r has lost his locus standi to move this Court during the period of emergency as already pointed out. '(hat being so, the petition is not maintainable". This passage has nothing to do with the validity of the order made under Art. 359(1). What this Court said was that, as under the Ordinance the petitioner therein had no right to move the Court to enforce his fundamental right, he had no locus standi to question the validity of the Act, for, he could question the validity of the Act only if he could move the Court in regard thereto. We, therefore, hold that the validity; of the President's order issued under Art. 359(1) could be questioned if it infringed the provisions of Art. 14 of the Constitution.

The next question is whether it infrigned Article 14. Mr Pillai put his arguments in two ways : (1) The President has made two orders"Under Art. 359(1); (i) GSR 1418 dated 30-10-1962 in respect of foreigners; and (ii) GSR 164 dated 3-11-1962 in respect of all, including foreigners. The terms of the order in regard to foreigners are without ariy limitations. But the order dated 3-11-1962 only affects persons who have been deprived of any of the fundamental rights referred to in the order under the Defence of India Ordinance, 1962 or lln) rule or order made thereunder. These two orders permit the authorities concerned at their discre-tion to rely upon the order which is more prejudicial or. drastic in respect of same persons. (2) The order of the President relating to foreigners is discriminatory as the fact that person is foreigner has no nexus to the object sought to be achieved, i.e., the security of the State. ·

The formula underlying the doctri1w of classification has be-. come ''' crystallised that it is unnecessary to refer to decisions. The principle is stated thus : "The cl;i>sification must h~ found on intclligihle differcntia which distinguishes persons or things that are ... grouped from those left out <lf the group and that the difierentia must have rational relation to the object sought to be achieved hy .the statute in question." What was the object of the order GSR .... 1418 issued by the President on 30-10-1962. There was grave emergency. The Chinese attacked India and Pakistan was poised for an attack. There was danger of internal sabotage. So, it was necessary to screen the foreigners, and to guard against their ;icts of sabotage and espionage. It was, therefore, necessary 10 issue '1 special order wider in scope than that of GSR 164 dated 3-11-1962 which was confined only to persons that had been ·deprived of certain rights under the Defence of India Ordinance. There was greater danger from foreigners, and, therefore, more drastic order only could meet the requirements of national security. Compared to foreigners, nationals, with some un-fortunate exceptions, can be relied unon to support the country's integrity and security. There is, therefore, clear nexus between the classification of foreigners and the citizens and the object sought to be achieved thereby.

Nor can we :.ppreciate the argument that the making of two orders, on" confined to foreigners and the other confined to all persons, including foreign,rs, violates Art. 14. Though GSR 164 may also deprive foreigners, along with the citi1.ens, of their right to move the Court in respect of their rights deprived under par-ticular Act, the scope of the said order (GSR 164) is not sufficient to guard against the subversive activities of foreigners. It is confined only to rights deprived under the Defence of India Ordi-nance. GSR 1418 has greater sweep and it takes in other rights. Though there is some overlapping, the two categories of persons-foreigners and citizens-offer different security and ot~ problems. Both the orders are mainly intended to operate in different fields and their scope is differ~nt. We, therefore, do not see any merit in this contention also.

, It is then argued that the President's order GSR 1276 dated 27-8-1965 has no retrospective effect and, therefore, the petitioner is entitled to move the court'. GSR 1276 was issued on 27-8-1965 lllllending the earlier ord~r by including Art. 14 therein. After · 27-8-1965, therefore, no foreigner has the right to move the Court though his fundamental right under Art. 14 of the Constitution ·is violated. In that sense, the order is not rctros1'ective but prospective. It only operates on the right of person to move the Court. As the petitioner in the present case filed his petition on 12th May, 1966, that is subsequent to the promul-gation of the order, he has ceased to have any right to move this

Court. The fact that he complained of his detention for period earlier to that date has. no hearing on the question of the main-tainability of the petition. This contention has also no merits.

Lastly, it was contended that the order detaining him was vitiated by ma/a fides. The argument of ma/a fides was put thus : The petitioner was prosecuted and tried for an offence under the Sea Customs Act. He was sentenced to 9 months imprisonment and to fine. He paid the fine and served his sentence. He was arrested pending the criminal case. He was let on bail on 18-3-1965. but before he left the jail he was detained under the Foreigners Act. It was said that the detention was 'not for any purpose con-nected with the security of the State, but only with view to make investigation in respect of case of conspiracy of smuggling gold into India of which, it is alleged, the petitioner was one of the con-spirators. As there are other effective provisions of the Code of Criminal Procedure to conduct the said investigation, the argument proceeded, the detention of the petitioner in the said circumstances was an abuse of powers under the Foreigners Act. It was further contended that s. 3 of the Foreigners Act was intended for regu-lating the entry and the exit of foreigners into and out of India, that it had nothing to do with the investigation of cases, and that therefore, the detention under that Act for the sole purpose of investigation was ma/a fide. The order of detention dated 18th September, 1964 reads: "In exercise of the powers conferred by sub-section (I) read with clause (g) of sub-section (2) of section 3 of the Foreigners Act, 1946 (31 of 1946) the Central Government hereby orders that Shri Ghulam Mohuddin Pakistani ~tional shall be arrested and detained until further orders." Clause (g) enables the Central Government to make an order detaining forei-gner. The clause does not narrate the reasons for which he can be detained. If, as the respondent says, the petitioner is involved in serious· case of conspiracy to smuggle gold and on that account his detention in India was necessary to make further investigation with regard to his conduct, we do not see why the wide power conferred on the Central Government to detain him under clause (g) could not be invoked. There is no merit in this contention also.

Jn the result, the petition is dismissed.

Bachawat, J. The order of Khanna, J. dismissing the writ petition filed by the petitioner in the Punjab High Court challen!!ing the legality of the detention order passed by the Central Govern-ment under s. 3(2)(g) of the Foreigners Act, 1946 and asking for the issue of writ of habeas corpus is not judgment, and does not operate as res Judicata. That order does not operate as bar to the application under Art. 32 of the Constitution asking for the issue of writ of habeas corpus on the same facts. The petitioner

has fundamental right to move this Court under Art. 32 for the issue of writ of habeas corpus for the protection of his right of liberty. The present petition must, therefore, be entertained and examined on the merits.

Order .35, Rule 3 of the Supreme Court Rules provid•s that petition for writ of lrobeas corpus under Art. 32 shall state whether the petitioner has moved the H;gh Court concerned for similar relief and if so, with what result. This rule is salutarv safeguard against an abusive use of petition for the issue of writ of habeas corpus under Art. 32. The previous dismissal of peti-tion for writ of habeas corpus by High Court is one of the matters which this Court may take into consideration at the preliminary hearing of the writ petition under Art. 32 in forming the opinion whether ·a prima faciP case for granting the petition is made out, and if on consideration of all the materials the Court comes to the conclusion that prima facie case is not made out, the Court may refuse to issue rule nisi under O· 35. r. 4.The petitioner did not previously move this Court for the issue of writ of habeas corpus challenging the legality of the order of detention under s. 3(2)(g) of the Foreigners Act. He has, therefore. the right to move this Court for the issue of the writ. But he has not right to move this Court unC.:er ~rt. 32 more than once on the same facts. Having heard the petitiorer fully on the merits once, the Court will not hear him again on the same facts.

It is to be noticed that the present petition does not challenge the validity of an order of imprisonment passed in criminal trial. I must not )>e understood to say that the remedy of writ of habeas corpus is available to test the propriety or legality of the verdic1 of competent Criminal Court.

The petitioner challenges the legality of the order, GSR 14 I 8 dated October 30, 1962 in respect of foreigners passed by the President under Art. 359(1) of the Constitution on the ground that it is discriminatory and violative of Art. 14. The argument is :his : Article 359(1) does not operate of its own force. The Presi-dent has to make an order under it declaring that the right to move Court in respect of fundamental right in Part III is suspended. The order of the President under Art. 359( I) is law within the meaning of Art. 13(2). An order under Art. 359(1) which takes away or abridges fundamental right is void under Art. 13 (2). Therefore, the validity of an order under Art. 359(1) may be ques-tioned if it abridges or takes away fundamental right other than the right under Art. 19 which is already susper.ded under Art. 358.

On the other hand, the respondent's argument is this: An order of the President under Art. 359(1) suspending the right

to move this Court for the enforcement of any right conferred by Part III necessarily abridges the right conferred by Art. 32. If the order of the President under Art. 359(1) is law within the meaning of Art. 13(2), the. Presider.! can never make valid order under Art. 359( I). This is reductio ad absurdwn. It is impossible to hold that the President can never make valid order under Art. 359(1). The conclusion must be that an order of the President under Art. 359(1) is not law within the meaning of Art. 13(2). Again, an order of the President suspending the right to move any Court for the enforcement of the right conferred by Art. 14 sub-stantially abridges the right conferred by Art. 14. If the remedy is totally suspended, the right is temporarily abridged. If the President's order under Art. 359( I) is law within the meaning of Art. 13(3)(a) the President can never make an order under At t. 359(1) suspending the right to move any Court for the enforcement of the right under Art. 14. This is an impossible conclusion, because by the very terms of Art. 359(1 ), the Presid~nt is given the right to pass an order suspending the right to move any Court for the enforcement of the right conferred by Art. 14. An order which by the express words of Art. 359(1) can abridge or take away right albeit temporarily cannot be held to be void on the ground that it infringes that right. The context of Art. 359(1) requires that an order of the President cannot be

law within the meaning of Art. 13(2).

I do not propose to decide in this petition which of the two opposing contentions should be accepted. Even assuming for the purpose of this case that the President's order under Art. 359(1) is law within the meaning of Art. 13(2) and can be pronounced to be invalid on the ground that it abridges or takes away the right conferred by Art. 14, I am of the opinion, for the reasons given by the learned Chief Justice, that the President's order is not discriminatory and is not violative of Art. 14.

I agree with the conclusions of the learned Chief Justice on other points and the order proposed by him.

V. P. S.

Petition dismissed